TL;DR
Law professor and home seller Tanya Monestier has filed an appeal to overturn the Sitzer/Burnett commission lawsuit settlement. She argues the deal gives sellers almost nothing—about 0.1% of their damages—while leaving the commission system largely intact. If the court agrees, the entire $1.8 billion+ settlement could be thrown out, reopening the litigation and undoing all the current rule changes. Her brief is below for anyone who wants to dig into the details.
The Settlement’s Most Persistent Critic Just Took It to the Next Level
When Tanya Monestier first objected to the Sitzer/Burnett settlement last fall, I wrote that her critique exposed the uncomfortable truth: this deal might look good on paper, but in practice, it’s left most sellers just as stuck in the old system as before. Now, she’s doubled down with a formal brief to the U.S. Court of Appeals for the Eighth Circuit—and she’s aiming not just to revise the settlement, but to throw it out entirely.
Monestier’s core argument is that the plaintiffs in the case didn’t have standing to settle for practice changes. She’s not disputing their right to seek damages. She is saying they weren’t in a position to negotiate how the entire real estate industry should operate going forward. That’s a critical distinction—because if the court agrees, it means the “injunctive relief” part of the settlement (the industry rule changes) has no legal foundation, and the whole deal collapses.
Let’s break that down.
$998 Million Sounds Big—Until You Do the Math
According to Monestier’s filing, the average payout to class members is somewhere around $16 after fees. Meanwhile, the average inflated buyer-broker commission paid by a seller was about $11,450. That works out to a recovery of 0.1%—before even considering the potential for treble damages under antitrust law.
As Rob Hahn summarized, “If the injunctive relief is weak or ‘illusory’… then the overall relief package in the Settlement amounts to $16 and some empty promises. That’s a pretty powerful argument in and of itself”.
Who Benefits From the Rule Changes?
That brings us to the second part of her argument: the plaintiffs are all past home sellers, and past sellers don’t benefit from future industry reforms. Under Article III of the Constitution, federal courts can only settle actual disputes between people who have a real stake in the outcome. Monestier argues that the court had no authority to approve a settlement where the “benefit” is forward-looking reform that doesn’t actually benefit the people in the class.
As she puts it in her brief: “There was nothing in the court’s order, or the record, showing that actual class members—past home sellers—would benefit from forward-looking injunctive relief.” That could be a fatal flaw.
A Settlement That Didn’t Stick
Beyond the legal technicalities, Monestier continues to hammer the real-world failures of the agreement. Commissions haven’t come down. Steering hasn’t stopped. Sellers are still paying both sides, often out of confusion or fear their homes won’t get shown. She lays out example after example of agents and brokerages exploiting the new rules, modifying buyer-broker agreements after the fact, tacking on bonuses, and pushing buyers into contracts they barely understand.
And she points out that there’s little to no enforcement. The National Association of Realtors—one of the defendants—is responsible for monitoring compliance. As she put it in her objection: “It’s like the fox guarding the henhouse.”
Where Things Stand
The court will accept briefs from other appellants through July 21. After that, the appeals court could schedule oral arguments, and potentially issue a ruling sometime in 2026. If Monestier prevails, the entire Sitzer/Burnett settlement could be tossed out, and the parties would be back at square one.
Real Estate Today summed it up well: “If the appeals court agrees, the settlement could be tossed out, and ‘we are back to where we were a year and a half ago’”.
In the meantime, sellers—and future sellers—are left with a patchwork of rules, inconsistent guidance, and growing skepticism over what has really changed.
For anyone who sold a home and thought this settlement might bring clarity or compensation, the truth is it still might not. And depending on how the court rules, this entire thing may just be a costly, confusing pause before the next legal chapter begins.
Brief Filed with the Court of Appeals: